Your Legal Minute

During the more than 36 years I have practiced law folks who
have tried to handle their cases by themselves, and some who have struck out
represented by other lawyers, have asked me to take over their cases after they
have lost at one or more preliminary hearings.

Frequently these folks have concluded that they, or their
prior lawyer, didn’t present all of the evidence, or didn’t argue the law
properly. Usually the TEN [10] DAY
PERIOD that they had following entry of a ruling or an order to set a hearing
asking the Judge to reconsider based on new evidence, or new law, that was not
available at the hearing they lost has passed by the time these folks have made
their way to my office [See California Civil Code or Procedure, Section
1008]. This may leave them in a
situation where they are stuck; where their only remedy is an expensive
Petition to the Court of Appeal for a Writ or in some rare situations an
expensive filing of an Appeal of the Superior Court’s interim decision.

A litigant is very, very, rarely privileged to disqualify a
Judge after the Judge decides matters at a hearing. Sometimes, though, changes in judicial
assignments, judicial retirements, or other factors come together in a way where
a different Superior Court Judge (who may have a slightly different approach)
causes folks to ask their lawyer, or their new lawyer, to ask the new Judge to
overrule the Judge that they struck out with earlier in their case.

There are some instances where this is possible; though
clients need to know that “generally, one trial judge may not reconsider and
overrule an interim ruling by another trial judge” in the same case.

An experienced attorney can help a client in appropriate
cases convince a second Judge to backtrack and make a different ruling; but
only if he or she can develop evidence and arguments taking advantage of the
few narrow exceptions to the general
rule. Competent Counsel may be able to
demonstrate in a Family Law Proceeding that “facts have changed” or “further
evidence and law” now mandate a different outcome. If facts exist, an attorney can help client’s
prove in a divorce, paternity, custody or support matter the other party
tricked the first Judge into making the wrong decision by presenting
fraudulent, perjured or mistaken evidence. See In re the Marriage of Oliverez (2015) 190 Cal.Rptr. 436, 441-442.

Care and good judgment are critical in deciding whether to
try to get a second Judge to overrule an earlier decision by the first Judge. Financial sanctions and attorney’s fees are
generally the “reward” for litigants who try, but fail, to convince a second
Judge that Judge number one was all wet when ruling against them. Parties in any civil suit, particularly in
legal separation, dissolution, parental relations or support cases, are well
advised to steer away from the attempt to convince a second Judge that an
earlier Judge was wrong without professional representation and advice from an
experience competent attorney.

“An award of spousal support is a determination to
be made by the trial court in each case before it, based upon the facts and
equities of that case, after weighing each of the circumstances and applicable
statutory guidelines.” In re Marriage of Kerr. Periodically the Legislature adds factors to
be considered by courts, but ultimately the evidence presented about the individual
circumstance of the parties determines how much spousal support will be paid;
and how long it will be paid.

More than the length of the marriage is
considered.

One spouse who devoted themselves to raising
children and maintaining the household may now not have marketable skills to
return to the workforce. One spouse may
have a high earning ability giving them the ability to pay support.

But if those high earnings far exceed the standard
of living that both spouses had during the marriage, a Court may limit the
amount to be paid to the amount it will take to keep the supported spouse at
(but not above) the marital station in life.

Health or disabilities are factors that must be
considered, if evidence is presented.

Job opportunities or the willingness of a supporting
spouse to provide funds for the education and retraining of a supported spouse
to regain their earning capacity are all factors a Court will consider if
properly presented.

An experienced family law lawyer is usually needed
to present the complex factual and legal factors for a favorable spousal support,
alimony or separate maintenance order during a divorce, dissolution of marriage
or legal separation. Post judgment
motions to modify or terminate support require just as significant evidence.

California dictates factors that a Judge must calculate in
Child Support cases in a complex matrix of statutes in its Family Code. Nevertheless, there are factors that a
custodial or visiting parent can argue to increase or to decrease the amount of
child support to be collected or paid.

For instance Family Code § 4062 requires on request a Judge order that “Child care costs related to
employment or to reasonably necessary education or training for employment
skills” be paid by a parent. The focus
is on employment now, or in the future.
In litigation over child support Judges cannot avoid ordering payment of
child care costs; unless those costs are unrelated to the custodial parent’s
current of future employment.
Occasionally a visiting parent can take advantage of this statute.

On the other hand, Judges have the choice of how to apportioning
travel for visiting between the parents.
This is a discretionary decision.
So these kinds of expenses may, or may not, be used to increase or
decrease the amount of support paid by a visiting parent. Generally a Judge is looking for
extraordinary travel expenses. Costs
equating with an ordinary commute that a parent might incur for work are not
the kind of expense a Judge is likely to consider to reduce a visiting parent’s
support, or to increase a custodial parent’s support if the custodial parent is
providing the transportation. Travel
from Ohio to California for visits may make a clearer case for an adjustment in
support, depending on other circumstances.

An experience family law lawyer can help you review and prepare
the kind of evidence need to help a Judge make a favorable decision on these
kinds of child support issues.

Like most resident and taxpayers, I think
the San Luis Obispo City Council should be seeding our public tax dollars in
ways that grow private jobs for people living right here in town. Why shouldn’t
people living in San Luis be the folks who get the work building our town’s
streets, water systems, and city buildings?
Shouldn’t our town’s stores, shops, restaurants, barbers and
hairdressers benefit from having more local customers? Wouldn’t this mean local residents could
better afford the high price of a modest home in San Luis Obispo?

Our City Council repeatedly issues bid
invitations to construct city facilities. But the bidding process used by San
Luis Obispo does not require the winning contractor to employ plumbers,
electricians, masons, welders, ironworkers, carpenters, equipment operators or
laborers who live in San Luis Obispo.

On April 21, for instance, the City Council
considered advertising for bids on two construction projects estimated to cost
$1.6 million to replace a storm drain on High Street and a 16-inch waterline on
California Boulevard and Johnson Avenue. But the council did not discuss
requiring the winning bidder to hire local workers for these or any other city
projects.

That means winning out-of-town bidders can
import workers from places such as Bakersfield, Fresno and Santa Maria who by
law must be paid the same good prevailing wage that a San Luis Obispo worker
would be paid. That money pulled out of San Luis Obispo instead boosts the
Bakersfield, Fresno or other distant economies.

California law allows our city an easy way
to require local-hire by the private
contractors constructing city facilities and infrastructure, at no added cost.California’s Public Contract Code permits a
city to enter into a project labor
agreement for all construction projects that will require any contractor
winning the bid to hire local residents to build city projects (whether it be a
bridge, sewer upgrade, or a new city police station).

Here’s where the turning lead into gold
comes in. It is something most of us intuitively know.With a local-hire requirement, whatever
contractor wins a city bid, the money is paid to local workers. It stays here.A local cement mason’s wage will get spent here
buying gas, paying for a barber, taking his family to the movies, and buying produce.
Those dollars will be spent again and again. The barber buys groceries, the
grocer buy more produce, and the theater and gas station pays their employees
here. The produce farmer will spend those dollars again at Costco, and the
theater employee will use them taking a date to dinner, and on and on as this
money circulates.It is well established
that a project labor agreement will boost a city’s local economy, multiplying by
400% to 700% the public construction dollars spent.

The Public Contract Code imposes taxpayer protection provisions on
project labor agreements. Both union
contractors and non-union contractors, in and out of town, are eligible to bid
and win the city’s contracts. Both union contractors and non-union contractors who are city residents are eligible for
jobs governed by the agreement on a first-applied, first-hired basis. Strikes
and lockouts are forbidden.Both union
and non-union workers must be provided with health and welfare, pension, vacation,
and training benefits - enriching our local community.And union hiring halls bear all administrative
expenses, even though non-union workers must be dispatched to the jobs and
provided union Health and Pension benefits.

The math is not complicated. If San Luis
Obispo had an adopted project labor agreement that $1.6 million spent on the
storm drain and waterline would generate between $6.4 million and $11.2 million
in new economic activity right here in SLO.

Attorney Stewart Jenkins has been practicing
law in San Luis Obispo since 1978. His practice includes municipal and taxpayer
law.

Spousal Abuse and Spousal Support. When is one a defense against the other?

In an opinion issued September 10, 2014, the California Second
District Court of Appeal considered an appeal by Mary from a Superior Court
order terminating her non-modifiable spousal support 7 years after Judgment had
been entered ordering her husband to pay her for life. Of real importance to the case was the fact
that Mary’s husband had agreed to the non-modifiable support to pay Mary, and
had stipulated that she was permanently disabled in 2004.

The California Legislature had adopted a new statute [Family
Code § 4325] effective in 2002, however, which dictated that if one spouse was convicted
of committing domestic violence against the other within five years before
either filed to dissolve their marriage, that this fact raised “a rebuttable
presumption affecting the burden of proof that any award of temporary or
permanent spousal support” should
not be made to the abusive spouse.

Mary had raised a number of defenses to applying the statute
to terminate her spousal support. For
instance, she had been convicted in 2000, two years before the new statute went
into effect. The Court rejected her ex
post facto argument – holding that requiring an abused spouse to pay a
convicted abuser would be “unconscionable,” would “unjustly enrich” the abuser,
would “force victims of abuse to remain dangerously entangled in the abuser’s
web of violence and intimidation,” and would require “the abused spouse to
finance his own abuse.”

Mary argued in various ways that her husband could not make
a motion to terminate support he had agreed to pay two years after the law went
into effect, and 10 years after he had signed the agreement to entry of
Judgment requiring him to pay. The court
held that the right of an abused spouse to be free from, or to be freed from,
paying support to their abuser was so important a public policy right that it
could not be waive. The fact that Mary’s
husband had never asserted that right before did not deprive him to assert it
now [Mary’s husband had argued he did not know about existence of a statute
allowed him to avoid supporting his abusive spouse]. The Court reasoned that because it was
against public policy to require a victimized spouse to pay support to a convicted
abuser, it did not matter whether the Husband knew or did not know he had a
right to oppose support or to terminate support whether agreed to or whether
ordered.

Does this affect dissolution of marriage between every
victimized spouse from a convicted abuser?
Yes, but the case leaves open one potential exception that has yet to be
defined by either the Legislature or by any Court case. And that Family Code § 4325 sets up a “rebuttable
presumption affecting the burden of proof” that a convicted abuser should never
receive spousal support. None of the Appellate Courts that have address when
facts or circumstances might rebut or overcome the presumption.

Just as every case
turns on unique facts, and every family navigates different circumstances,
ultimately situations triggering a Family Code § 4325 will depend on careful
analysis, full presentation of evidence, and insightful lawyering. For all the facts of Mary’s case, you can
look up In re the Marriage of Kelkar (2014) ___ Cal.App.4th
__, 176 Cal.Rptr.3d 905

But does California law really make husbands and wives
“marry their fortunes together?”Most
married couples will buy a house as “husband and wife” or as “joint tenants”
during their marriage.But what does
that mean if a husband buys a car from his payroll check only in his name
during the marriage, or a wife opens a business during the marriage with money
she earned after marriage and puts the business profits into a checking account
in her name only?What happens if one
spouse buys a lot during the marriage in his or her name only?Does it matter how title is held to property
acquired during marriage?

These are questions as old as California.Marital property law in California always
viewed property acquired by either spouse as “a community of property between
husband and wife, [borrowed] from the Spanish law.”There “is
hardly any analogy between … the doctrines of the common law in respect to the
rights of property consequent upon marriage.” California’s law of marital
property “proceeds upon the theory that the marriage, in respect to property
acquired during its existence, is a community of which each spouse is a member,
equally contributing by his or her industry to its prosperity, and possessing
an equal right to succeed to the property after dissolution, in case of surviving
the other. To the community all acquisitions by either, whether made jointly or
separately, belong. No form of transfer or mere intent of parties can overcome
this positive rule of law. All property is common property, except that owned
previous to marriage or subsequently acquired in a particular
way.”Meyer v. Kinzer (1859) 12 Cal. 247, 250-252.Though at odds with the English common law
(where married women had little or no right to own, manage or inherit
property), this seemingly simple “partnership” concept has been, and continues
to be, the subject of litigation (see for instance my posting on the majority
and concurring opinions issued by the California Supreme Court Case on In re the Marriage of Frankie Valli and
Randy Valli decided May 15, 2014).

To understand the concepts, it
helps to translate some of the phases into modern terms.For instance “equally contributing by his or
her industry to [the marriage’s] prosperity” easily means that someone working
for a pay check, or working in a business they open is using his or her time,
skill, and labor to generate income for the marriage.Less obvious, but just as true, a spouse who
maintains the house, raises the children, arranges medical appointments and
supporting the other spouse in their efforts to work or build a business is
contributing their “industry” to make it possible for the working spouse to
maximize their earnings.So every dollar
earned through work of either spouse belongs equally to both.

What does this mean in the
context of the questions posed at the beginning of this post?

Let’s take the husband who
bought a car in just his name with his paycheck [I know, nice pay check] during
the marriage.It does not matter what
the title says, the car is community property belonging to both spouses.

Wife owns a 50% interest in the car. How about the wife who opened a
business during marriage which she alone manages, and deposits the profits from the business into an
account in her name only? Again, the
business, the profits, and the bank account are community property belonging to
both spouses. Husband owns half regardless of the name on the account or the business.

And if one spouse buys a parcel of land during the marriage in his or her name only.As Meyer v. Kinzer held “No
form of transfer [title on the deed] or mere intent of parties can overcome
this positive rule of law,” so if the money used to buy the lot was community
property it does not matter what the title says about one spouse owning, or
even the intention that the spouse had when he or she bought the lot.It would be community property, in which the
other spouse owned 50%.

Are there exceptions?Of course.For more information, see the blog post on preserving separate property
during marriage.And see the blog post
on In re the Marriage of Frankie Valli
and Randy Valli about “transmutation” of property to or from a community or
separate status.

Each of us grows up in the United States knowing that engraved
on our DNA is an inalienable right to speak, publish, and participate in local,
state and national government. This is
much more than voting, writing a letter to the editor or commenting on an
internet newspaper article. So many
aspects of citizen involvement are interwoven into the basic idea of Freedom of
Speech, Press, Assembly and Petition that many pages would be needed just to
catalog how it affects every aspect of American life. From running for office to reporting a crime,
it forms the basic fabric tying our democratic-republic together.

But powerful officials and individuals, who vigorously guard
their own positions, sometimes do so by abusing the courts to take rights of
free speech and free press away from those whose ideas or influence they
fear. Lawyer shorthand for these kinds
of noxious lawsuits is to describe them as SLAPP suits (Strategic Lawsuit
Against Public Participation). Candidates,
Office Holders and Government Contractors sometimes sue investigative
journalists, news media, election opponents, churches, activists or
whistleblowers for such things as defamation, libel, slander, invasion of
privacy to try to keep them from uncovering or reporting on corruption.

But California law contains a powerful antidote. In 1992 the legislature found that there had
been “a disturbing increase in lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech” and petition and “that
it is in the public interest to encourage continued participation in matters of
public significance, and that this participation should not be chilled through abuse
of the judicial process.” In doing so
California enacted Civil Code of Procedure § 425.16 authorizing someone
victimized by a SLAPP suit to immediately
ask the court to throw the case out because it stems from an “act of [of the
defendant] in furtherance of the [defendant]’s right of petition or free speech
under the United States Constitution or the California Constitution in
connection with a public issue.” This
statute protects statements made at official meetings, to administrative
agencies, at court, and reports to law enforcement. It protects statements made in any public
forum about an issue of public interest.
And it protects “any other conduct” furthering your exercise “of free
speech in connection with a public issue or an issue of public interest.” BUT, the motion is not self-actuating. The person sued must bring the motion within 60 days of being served with the
complaint (so don’t delay finding a lawyer to help you with the motion or your
chance to bring it will be lost). Hearing on an Anti-SLAPP motion is also very
quick, usually less than 30 days after the motion is filed. These are fast paced defenses. Success is dependent on presenting factual
evidence that the suit arises from an act of free speech, press, or petition in
connection with a public issue. And
succeeding in the Anti-SLAPP motion also depends on undercutting several
exceptions allowing plaintiffs to preserve the lawsuit in particular instances. To save defendants from expense and delay,
there is an automatic stay in the statute against plaintiffs taking depositions
(or other discovery) while the motion is pending. Exceptions to the discovery stay, and
defenses of the stay, must be carefully and zealously addressed in these expedited
motions to strike.

Anti-SLAPP motions are one of the best tools to protect your
Constitutional rights. They are
professionally rewarding for Constitutional lawyers. But they are not simple, not the right tool
in every free speech case, and should be brought by experienced attorneys. Happily the Legislature has made it easier for
you to get help defending your freedoms. To motivate experienced lawyers to protect
your rights to free speech, press and petition rights the Legislature mandated
that courts shift “the financial burden of defending against so-called SLAPP
actions on the party abusing the judicial system.” See Ketchum
v. Moses (2001) 24 Cal.4th 1122, at 1136. If you win your Anti-SLAPP motion, "Absent
special circumstances rendering the award unjust, an attorney fee award should
ordinarily include compensation for all the
hours reasonably spent …." Ketchum,
above, 24 Cal. 4th 1122, 1133. In
short, California’s Anti-SLAPP motion is designed to dissuade the powerful from
SLAPPing journalists, whistleblowers, and ordinary citizens with lawsuits to
muzzle their freedom of speech, press, or petition by making those who abuse
the court system pay legal fees and costs for the journalists’,
whistleblowers’, or citizens’.

Do mothers and fathers have equal rights in Paternity
Cases? Yes, but a father’s rights to paternity must be earned.

In California an unwed father does not have any statutory right
to assert rights to custody, visitation, or even to prevent the adoption out of
a child unless he has first established a parental relationship with the child
that gives him (and the child) a constitutional due process and equal
protection right to continue or further develop that relationship between
father and child under the 14th Amendment.

For an unwed father's relationship to “ripen into a
constitutional right” he must prove that he promptly came forward and
demonstrated a full commitment to his parental responsibilities. The mere existence of a biological link does
not merit constitutional protection. The U.S. Constitution only will supersede
California statutes to protect the unwed father’s relationship if that father
has actively developed the parental relationship by actually stepping up to
participate in the rearing of his child and act toward the child as a father.

This rule of law is best stated in a 6-1 California Supreme
Court opinion authored by Justice Stanley Mosk in 1995 entitled Adoption of Michael H., 10 Cal.4th 1043,
1052.

Unscrupulous individuals and
companies that dupe Cities and Counties into paying out false claims submitted,
or collude with government officials to keep public funds from being charged or
collected lawfully, can cost local governments millions of dollars. In a Qui
Tam suit, Treble Damages and other penalties can be recovered. Where political or other factors prevent the
prosecuting attorney in a City or County from bringing suit to recover the
ill-gotten gains, California authorizes a private citizen can sue on behalf of
their local government; and the successful private Qui Tam plaintiff shares not less than 25% and not more than 50%
of the recovered funds as a reward for his or her trouble. A successful private Qui Tam plaintiff is also entitled to an award of reasonable
attorney’s fees and expenses against the defendant(s).

Gov. C. § 12652.

However, where a local government has
declined to sue, and the private Qui Tam plaintiff fails to win, the defendant
may seek an attorney’s fees and costs award in some circumstances.

by Attorney, Stew Jenkins

Disclaimer: Blog posts are NOT legal advice and NO Attorney-Client Relationship is formed by these posts or by any comments, or by comments replying to comments on this Blog. This is for general information as the laws frequently change and might be different in other jurisdictions. This Blog is not intended to substitute for advice from an attorney, licensed in your jurisdiction. Please consult a competent attorney in your area if you require legal advice. Please do not include sensitive or confidential information in your comments, replies or emails.